Hardaway v. Hartford Pub. Works Dep't

• Decision Date: 12 January 2018
• Docket Number: Docket No. 16-3074,August Term, 2017
• Parties: Curtis HARDAWAY, Plaintiff–Appellant, v. HARTFORD PUBLIC WORKS DEPARTMENT, Defendant–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

879 F.3d 486

Curtis HARDAWAY, Plaintiff–Appellant,

v.HARTFORD PUBLIC WORKS DEPARTMENT, Defendant–Appellee.

Docket No. 16-3074

August Term, 2017

United States Court of Appeals, Second Circuit.

Submitted: October 13, 2017

Decided: January 12, 2018

CURTIS HARDAWAY, pro se, Windsor, C.T.

JONATHAN H. BEAMON, Senior Assistant Corporation Counsel, Hartford, CT for Defendant–Appellee.

Before: WINTER, CALABRESI, and POOLER, Circuit Judges.

POOLER, Circuit Judge:

Plaintiff–Appellant Curtis Hardaway, proceeding pro se, appeals from the August 31, 2016 judgment sua sponte dismissing his third amended complaint against the City of Hartford, the Hartford Department of Public Works (the "Department"), and five Doe defendants. Hardaway, an African American and former employee of the Department, alleged that he was subjected to discrimination and retaliation after he filed complaints against the Department with the Occupational Safety and Health Administration ("OSHA"). As relevant here, the district court dismissed Hardaway's Title VII claims and a state law claim of negligent infliction of emotional distress because Hardaway failed to plead facts relating to administrative exhaustion.¹

Because we hold that administrative exhaustion under Title VII is an affirmative defense, we reverse the district court's judgment as to Counts I, III and V of the third amended complaint, and remand for further proceedings.

BACKGROUND

Hardaway worked for the Department of Public Works for over 20 years. In 2011, he noticed worsening safety violations by the Department. In late 2013, after being placed in a "dangerous life and death hazardous working environment," Hardaway photographed the safety violations. Third Amended Complaint at ¶¶ 11–12, ECF No. 26, Hardaway v. Hartford Public Works Dep't , No. 16-cv-00115 (D. Conn. July 18, 2016). When he showed his white supervisor the photographs, the supervisor told Hardaway to get back to work. According to Hardaway, his supervisor would not have treated him that way were he white. Further, his "[w]hite coworkers [were] not forced to work in the dangerous working environment." Id. at ¶ 24.

Following his supervisor's inaction, Hardaway filed a complaint with OSHA regarding his working conditions. Thereafter, he was threatened, harassed, and intimidated. He was identified as a "troublemaker," called "bitch, gay, a person that will complain to OSHA," and told to " ‘play ball’ and stop asking safety questions." Id. at ¶ 13. Additionally, he was denied overtime and suspended because of his OSHA complaint. In August 2014, a white supervisor told Hardaway that if he stopped reporting safety violations, his demotion would "go away" and his overtime would be "reinstated." Id. at ¶ 14. Hardaway then filed another complaint with OSHA, asserting discrimination and retaliation because of his prior OSHA complaint. In February 2015, he was told to "stop acting like a bitch running to OSHA like a little girl" and that if he stopped reporting safety violations "everything [would] go back to normal." Id. at ¶ 15. He filed another complaint with OSHA and was fired three months later. According to Hardaway, he would not have been fired were he white.

Hardaway brought suit on January 26, 2016, alleging discrimination and retaliation claims. On August 31, 2016, the district court sua sponte dismissed Hardaway's third amended complaint, adopting the recommended ruling of the magistrate judge. The district court reasoned that Hardaway had pled sufficient facts to support Title VII claims of employment discrimination and a hostile work environment, but those claims nonetheless were not viable because Hardaway failed to plead facts relating to administrative exhaustion with the Equal Employment Opportunity Commission ("EEOC"). The district court declined to exercise supplemental jurisdiction over the state law claim of negligent infliction of emotional distress.

DISCUSSION

We review de novo a district court's sua sponte dismissal under 28 U.S.C. § 1915(e)(2). Giano v. Goord , 250 F.3d 146, 149–150 (2d Cir. 2001), abrogated on other grounds by Porter v. Nussle , 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). To avoid dismissal, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). We afford a pro se litigant "special solicitude" by interpreting a complaint filed pro se "to raise the strongest claims that it suggests." Hill v. Curcione , 657 F.3d 116, 122 (2d Cir. 2011) (internal punctuation omitted).

"As a precondition to filing a Title VII claim in federal court, a plaintiff must first pursue available administrative remedies and file a timely complaint with the EEOC." Deravin v. Kerik , 335 F.3d 195, 200 (2d Cir. 2003) ; see also 42 U.S.C. § 2000e–5(e) and (f) (providing procedures and deadlines for filing charges with the EEOC and, following receipt of a right-to-sue letter, in court); Legnani v. Alitalia Linee Aeree Italiane , S.P.A. , 274 F.3d 683, 686 (2d Cir. 2001) (describing Title VII exhaustion as requiring that "a claimant...file[ ] a timely complaint with the EEOC and obtain[ ] a right-to-sue letter"). We have previously noted that exhaustion is "an essential element of Title VII's statutory scheme." Francis v. City of New York , 235 F.3d 763, 768 (2d Cir. 2000) (quoting Butts v. City of New York Dep't of Hous. Pres. & Dev. , 990 F.2d 1397, 1401 (2d Cir. 1993) ). However, we have repeatedly held that "the failure to exhaust administrative remedies is a precondition to bringing a Title VII claim in federal court, rather than a jurisdictional requirement." Id. at 768 (citations omitted); see also Fowlkes v. Ironworkers Local 40 , 790 F.3d 378, 385 (2d Cir. 2015) ("[T]he failure of a Title VII plaintiff to exhaust administrative remedies raises no jurisdictional bar to the claim proceeding in federal court."). Thus the Title VII exhaustion requirement is "subject to equitable defenses." Fowlkes , 790 F.3d at 384.

This case calls on us to answer a question we have not yet squarely considered: which party bears the burden of pleading and proving exhaustion in a Title VII case brought by a non-federal employee. We have considered closely related issues previously. In Townsend v. Home for the Homeless, Inc. , we decided the narrower question of whether compliance with the filing deadlines established by 42 U.S.C. § 2000e–5(f) operated as an affirmative defense, and found, in a non-precedential summary order, that it did. 28 Fed.Appx. 85, 86 (2d Cir. 2002) (Title VII claim was not barred for failure to comport with 42 U.S.C. § 2000e–5(f)(1) deadline requirements because "the 90–day time limit is an affirmative defense that is waived if not pled"). We have also held that failure to exhaust administrative remedies "can be asserted by the government as an affirmative defense," in Title VII suits brought by federal employees. Belgrave v. Pena , 254 F.3d 384, 386 (2d Cir. 2001). Title VII claims brought by federal employees share certain statutory requirements with other Title VII claims, but are subject to separate statutory provisions and regulations. See § 2000e-16(e), (d) (incorporating portions of Title VII statutory scheme for non-federal employee claims); see also Green v. Brennan , ––– U.S. ––––, 136 S.Ct. 1769, 1775, n. 4, 195 L.Ed.2d 44 (2016).

Several of our sister circuits have considered various strains of the question now before us, and ruled that Title VII exhaustion operated as an affirmative defense, with the burden on the defendant. Laouini v. CLM Freight Lines, Inc. , 586 F.3d 473, 475 (7th Cir. 2009) ("Failure to timely file an administrative charge is an affirmative defense, and the burden of proof ... therefore rests on the defendant."); see also Payan v. Aramark Mgmt. Servs. Ltd. Partnership , 495 F.3d 1119, 1121–22 (9th Cir. 2007) (holding that the filing deadlines established by 42 U.S.C. § 2000e-5(f)(1) function as a statute of limitations, and "because the statute of limitations is an affirmative defense, the defendant bears the burden of proving that the plaintiff filed beyond the limitations period"); Garner v. G.D. Searle Pharm. Co. , 581 Fed.Appx. 782, 784 (11th Cir. 2014) (analyzing Title VII exhaustion as an "affirmative defense") (unpublished opinion). In the overlapping context of federal employment Title VII claims, numerous circuit courts have similarly held that exhaustion is an affirmative defense. See Bowden v. United States , 106 F.3d 433, 437 (D.C. Cir. 1997) ("[E]xhaustion of administrative remedies is an affirmative defense," and thus "the defendant bears the burden of pleading and proving it."); see also Williams v. Runyon , 130 F.3d 568, 573 (3d Cir. 1997) ("Because failure to exhaust administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving that the plaintiff has failed to exhaust administrative remedies."); Kraus v. Presidio Tr. Facilities Div./Residential Mgmt. Branch , 572 F.3d 1039, 1046 n. 7 (9th Cir. 2009) ("Whether a plaintiff in a Title VII action has timely exhausted her administrative remedies is an affirmative defense, [so] the defendant bears the burden of pleading and proving it.") (quoting Bowden , 106 F.3d at 437 ) (internal quotation marks omitted); Lockett v. Potter , 259 Fed.Appx. 784, 786 (6th Cir. 2008) ("Failure to exhaust administrative remedies in a timely manner is an affirmative defense, and the defendant bears the burden of pleading and proving this failure.") (citing Williams , 130 F.3d at 573 ) (unpublished opinion). However, at least one Court of Appeals rejected this view, ruling instead that compliance with ...